Citation Nr: 21024928 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-41 444 DATE: April 26, 2021 ORDER An initial 50 percent rating for migraine headache syndrome since October 2, 2015, is granted. REMANDED The issue of an initial compensable rating for hypertension since October 2, 2015, is remanded. The issue of initial increased ratings for left knee disabilities currently rated as 10 percent since October 2, 2015, for patellofemoral syndrome and tendinosis and 10 percent for instability, is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) since October 2, 2015, is remanded. FINDING OF FACT Since October 2, 2015, the Veteran’s migraine headache syndrome has caused very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, since October 2, 2015, for migraine headache syndrome have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 2012 to October 2015. Entitlement to an initial rating of more than 30 percent for migraine headache syndrome since October 2, 2015. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Migraine headaches are rated according to diagnostic code 8100. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable rating is warranted for migraines with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In December 2016, the Veteran was afforded a VA examination. He reported throbbing frontal headaches that lasted 1.5 hours and were associated with photophobia and sensitivity to sound. He took daily medication to treat his symptoms. On examination he had had pulsating or throbbing head pain; sensitivity to light; sensitivity to sound; head pain that lasted less than 1 day; and prostrating attacks that occurred more frequently than one time per month. The Veteran reported having to leave work due to headaches approximately two times per month. A September 2017 VA treatment record indicates that the Veteran was treated with medication for migraine headaches, that the headaches lasted 45 minutes to 1 hour each, that medication and being in a dark, quiet room alleviated his symptoms, and that his migraines were associated with nausea or vomiting. An August 2018 VA treatment record states that the Veteran reported migraines occurring daily to every other day. They caused sensitivity to light and sound, and caused nausea. He had to lie down in a dark, quiet room when he had a migraine. A July 2019 VA treatment record indicates that the Veteran took daily medication to treat his migraines. A January 2020 VA treatment record states that the Veteran had migraines with auras approximately one time per month. He was taking medication to treat the headaches. In February 2021, the Veteran was afforded another VA examination. He reported daily, throbbing pain on both sides of his head, pain behind his eyes, and discomfort on the side of his head. Headaches caused sensitivity to light and required that he go into a dark, quiet room and wait for his medication to help alleviate his symptoms. He took several medications for his symptoms. He reported that his headaches affected his ability to focus at work, and that he had to avoid stress and strenuous activities. On examination he had pulsating or throbbing head pain; pain on both sides of the head; pain which worsened with physical activity; sensitivity to light; sensitivity to sound; nausea; and changes in vision. His head pain typically lasted less than 1 day and occurred on both sides of his head. The examiner stated that the Veteran’s headaches caused difficulty concentrating and focusing, made him more irritable, and affected his ability to critically think as a counselor. Given these facts, the Board finds that the Veteran’s migraine headache syndrome most closely approximated a 50 percent rating during the entire period on appeal. 38 C.F.R. § 4.7. This is the maximum schedular rating available for this disorder. REASONS FOR REMAND 1. The issue of an initial compensable rating for hypertension since October 2, 2015, is remanded. 2. The issue of initial increased ratings for left knee disabilities currently rated as 10 percent since October 2, 2015, for patellofemoral syndrome and tendinosis and 10 percent for instability, is remanded. 3. The issue of entitlement to TDIU since October 2, 2015, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In September 2020, the Board remanded the issue of an increased rating for hypertension to obtain an updated VA examination to determine “the current severity” of the disorder. In a January 2021 VA examination report, the examiner reported blood pressure readings from July 2019 and January 2020. This does not provide the Board with any new information nor does it address the current severity of the Veteran’s disorder. The RO failed to obtain an examination that complied with the Board’s directive and, therefore, this examination report is inadequate, and remand is again required. The RO’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). In January 2021, the Veteran was afforded a VA knee examination. The examiner indicated that the Veteran did not have a meniscus disorder. However, at the end of the examination report, the examiner wrote “He has a positive McMurray’s test, suspicious for meniscus pathology.” Remand is necessary to obtain clarification as to whether the Veteran has a meniscus disorder. Remand of the issue of entitlement to TDIU is necessary to obtain information about the Veteran’s employment history. This issue is on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and, therefore, the period on appeal begins on October 2, 2015, when the increased rating claim periods began. It is unclear when the Veteran was working during the period on appeal. Therefore, additional development is necessary. 2. Schedule the Veteran for a VA hypertension examination to obtain an opinion as to the current nature of his disorder. All indicated tests and studies should be accomplished and the findings reported in detail. THE EXAMINER MUST OBTAIN CURRENT BLOOD PRESSURE READINGS. REUSING PREVIOUSLY RECORDED READINGS IS INADEQUATE. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 3. Return the file to the VA examiner who conducted the January 2021 VA knee examination. If the examiner is not available, have the file reviewed by a similarly qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA knee examination to obtain an opinion as to the current nature of his left knee disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner must clarify whether the Veteran currently has, or has had at any time, a meniscus disorder or meniscus symptoms. The January 2021 VA examination report indicates that the Veteran had no meniscus disorder or symptoms but then states, “He has a positive McMurray’s test, suspicious for meniscus pathology.” (Continued on the next page)   4. Conduct all appropriate development, including requesting that the Veteran submit a VA Form 21-8940, to determine his employment, earnings, and education histories. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.